MULLIN v. THE STATE OF NEW JERSEY et al
Filing
153
OPINION filed. Signed by Judge Mary L. Cooper on 11/1/2013. (eaj)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOAN MULLIN, ADMINISTRATRIX OF THE
ESTATE OF ROBERT MULLIN, deceased,
and JOAN MULLIN, individually,
CIVIL ACTION NO. 11-247 (MLC)
MEMORANDUM OPINION
Plaintiffs,
v.
ADMINISTRATOR KAREN BALICKI, et
al.,
Defendants.
COOPER, District Judge
The Plaintiffs, Joan Mullin, individually and as administratrix
of the estate of Robert Mullin, her son, (hereinafter “Plaintiffs”)
bring this action against the following individual defendants in
their “personal, individual and professional capacities” who
represent the Department of Corrections of the State of New Jersey,
South Woods State Prison, and Central Reception & Assignment
Facility: Administrator Karen Balicki (hereinafter “Balicki”);
Director Robert Patterson (hereinafter “Patterson”); and Director
Marie Dunlap-Pryce (hereinafter “Dunlap-Pryce”).
no. 102, 2nd Am. Compl. (hereinafter “Compl.”).)1
1
(See dkt. entry
Plaintiffs
Before the Court is Plaintiffs’ Second Amended Complaint.
(See dkt. entry no. 129, 3-8-13 Order at 1; dkt. entry no. 143, 514-13 Order at 1 n.1.) References to “Complaint” hereinafter refer
to this Second Amended Complaint.
further bring this action against the following individuals in
their “personal, individual and professional capacities”: Jane
Byrd, L.P.N. (hereinafter “Byrd”); Erin Marusky, R.N. (hereinafter
“Marusky”); Officer Dimler (hereinafter “Dimler”); and Beatrice
Teel, R.N. (hereinafter “Teel”).
(See id.)
Plaintiffs also name
as defendants Kintock Group and Mercer County.
(See id.)
Mercer County was dismissed from the action by stipulation of
the parties on March 22, 2011.
(See dkt. entry no. 15, Stip. of
Dismissal as to Mercer County.)
Plaintiffs also agreed to the
dismissal of the claims against Marusky by order of the Court on
May 2, 2013.
(See dkt. entry no. 139, 5-2-13 Order.)
Before the Court are the separate motions by Byrd to dismiss
the claims asserted against her and by Balicki, Patterson, DunlapPryce, Dimler, and Teel (hereinafter “DOC Defendants”) to dismiss
the claims asserted against them for failure to state a claim
pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(c).
(See dkt. entry no. 144, Byrd’s Mot. to Dismiss; dkt. entry no.
2
145, DOC Defs.’ Mot. to Dismiss.)2
For the reasons that follow,
the Court will deny the part of the motion to dismiss concerning
the individual-capacity, constitutional claims against Byrd, and
the Court will grant the remainder of the separate motions to
dismiss in their entirety.
I.
ALLEGATIONS IN THE COMPLAINT
Plaintiffs’ claims are based on the suicide of Robert Mullin
(hereinafter “the decedent”) while incarcerated in the State of New
Jersey.
Specifically, Plaintiffs allege that the decedent was
incarcerated for about six to eight years through January 17, 2009,
2
Byrd and Dimler filed answers on October 24, 2012 and April
9, 2013 respectively. (See dkt. entry no. 108, Byrd Answer; dkt.
entry no. 134, Dimler Answer.)
Both preserved the grounds for
dismissal at issue before the Court by raising failure to state a
claim as an affirmative defense in their answers. With respect to
these two defendants, the motions pending are Rule 12(c) motions
for judgment on the pleadings for failure to state a claim since
these defendants have filed responsive pleadings. See Turbe v.
Gov’t of V.I., 938 F.2d 427, 428 (3d Cir. 1991) (stating that
Rule 12(b)(6) motions must be filed before a responsive
pleading, but that “[a] Rule 12(c) motion for judgment on the
pleadings may be filed after the pleadings are closed. . . .
Rule 12(h)(2) provides that a defense of failure to state a
claim upon which relief can be granted may also be made by a
motion for judgment on the pleadings.”); Fed.R.Civ.P. 12(h)(2).
As to the remaining defendants who have not filed responsive
pleadings, the pending requests for relief are pursuant to Rule
12(b)(6) for failure to state a claim upon which relief may be
granted. Counsel for Dimler described the nature of the request
for all the DOC Defendants as being pursuant to Rule 12(b)(6).
This was in error, as the filing of Dimler’s answer renders that
request to be pursuant to Rule 12(c). See Turbe, 938 F.2d at 428.
Byrd’s motion was properly labeled as a Rule 12(c) motion. Because
the standard for a Rule 12(b)(6) motion applies to both the Rule
12(c) and the Rule 12(b)(6) motions pending, see id., the Court
will hereinafter address them by reference to Rule 12(b)(6).
3
the date of his death.
(Compl. at ¶ 11.)
In May of 2008, he was
transferred from prison to a halfway house operated and managed by
The Kintock Group (hereinafter “Kintock”).
(Id. at ¶ 12.)
The
decedent was to be released from Kintock around April to June of
2009 following his completion of the therapy, work studies, and
rehabilitative services.
(Id. at ¶ 13.)
However, while residing
at Kintock, the decedent had been fired from his job.
(Id. at ¶
23.)
On January 15, 2009, while at Kintock, the decedent exhibited
a deterioration in his mental status and became aggressive.
at ¶ 14.)
(Id.
Illegal substances, including cocaine and opiates, were
found in his possession.
(Id. at ¶ 15.)
Also, in the presence of
a Kintock caseworker, the decedent swallowed a handful of pills
that he identified as medication for depression.
(Id. at ¶ 16.)
The decedent was subsequently transferred to South Woods State
Prison, where he was medically evaluated, and he tested positive
for opiates and cocaine.
(Id. at ¶¶ 17-18.)
On January 16, 2009,
he was transferred to the Central Reception & Assignment Facility
(hereinafter “CRAF”), “under the custodial care, supervision,
management and control” of Balicki, Patterson, and Dunlap-Pryce
(hereinafter “Supervisory Defendants”).
(Id. at ¶ 18.)
Plaintiffs
further allege that between January 15 and 17, 2009, the decedent
“also was treated by and was under the custodial care, supervision,
4
management, and control of the Trenton Psychiatric Hospital,” and
its employees and staff.
(Id. at ¶ 19.)
Plaintiffs allege that Kintock’s file on the decedent
indicated that he had an extensive drug history and a high risk of
abusing drugs and alcohol.
(Id. at ¶¶ 21-22.)
Also, Plaintiffs
allege that the decedent had a history of mental illness and
suicide attempts.
(Id. at ¶¶ 24, 40.)
At various points from 2005
until the time of his death, the decedent had been hospitalized for
mental illness, had used medication for his psychiatric conditions,
and had considered or attempted suicide.
(Id. at ¶¶ 40-41, 43-49.)
The Complaint alleges that this was reflected in various medical
records and intake forms; however, with the exception of the
records from Kintock, the Complaint does not allege that the
defendants had actual knowledge of these records or the information
contained therein in January of 2009.
(See, e.g., id. at ¶¶ 40-41,
43-48.)
On January 14, 2009, three days before his death, the
decedent’s medical records reflect that he “was seen at South Woods
State Prison, following a transfer from Kintock to Detention/ECU,
and the diagnosis of ‘mood disorder,’ a family history of suicide,
and a history of being a suicide risk.”
(Id. at ¶ 49.)
The
Complaint does not indicate whether the particular defendants in
5
this matter were aware of the January 14, 2009 records or their
content.
According to the Complaint, Byrd and Teel, as agents of the
Supervisory Defendants, examined and evaluated the decedent on
January 16, 2009.
(Id. at ¶ 39.)
Byrd performed a nursing intake
on this date, and the decedent allegedly responded in the
affirmative to the following questions: (1) “have you ever been
hospitalized or treated for psychiatric illness”; and (2) “have you
ever considered or attempted suicide.”
(Id. at ¶ 50.)
The
decedent’s medical records from this same date included a
“diagnosis of ‘mood disorder,’ a family history of suicide, and a
history of being a suicide risk.”
(Id.)
On January 16, 2009 at
CRAF or South Woods State Prison, Byrd cleared the decedent
medically for placement in the general prison population.
(Id. at
¶¶ 51, 56.)
At approximately 4:23 AM on January 17, 2009, Dimler, who was
allegedly the corrections officer responsible for caring for and
treating the decedent, found the decedent unresponsive after the
decedent had hung himself with what limited records indicate was a
self-made noose from a bed sheet.
(Id. at ¶¶ 25-26.)
After this
discovery, Teel was summoned, an unnamed officer or medical
provider performed CPR, and the decedent was pronounced dead at
4:49 AM.
(Id. at ¶¶ 30-31, 57.)
6
The Complaint asserts that Kintock failed to advise or notify
Byrd, Teel, and Dimler about the decedent’s mental-health and
substance-abuse issues.
(Id. at ¶ 56.)
The Complaint further
alleges that Dimler and Teel “knew or should have known” of the
decedent’s history of attempted suicide, mental illness, and
substance abuse from the transfer records from Kintock.
27, 33.)
(Id. at ¶¶
The Complaint alleges that they failed to “review,
evaluate, or follow” transfer records from Kintock in determining
what level of care to provide to the decedent, including treatment
for his intoxication and one-on-one supervision.
(Id. at ¶ 36.)
The Complaint asserts that Byrd and Teel failed to evaluate the
decedent for intoxication, as was required by policy and procedure.
(Id. at ¶ 53.)
According to the Complaint, had these defendants
properly evaluated the decedent and reviewed his medical records,
the decedent “would have been transferred to the infirmary and/or
been placed under constant supervision without the ability to harm
himself.”
(Id. at ¶ 54.)
Moreover, Dimler and Teel purportedly
“knew that policy and procedure required direct and constant
supervision and monitoring, and yet failed to abide by said policy
and procedure, evidencing a gross indifference” to the decedent’s
welfare.
(Id. at ¶¶ 28, 34.)
Specifically, both permitted the
decedent to be in a cell with materials including bed sheets that
could be used to inflict self-harm.
7
(Id. at ¶¶ 29, 36.)
According to the Complaint, the decedent’s history of suicide
attempts, mental-health issues, and recent drug abuse were known or
should have been known to Dimler, Teel, Byrd, Kintock, and the
Supervisory Defendants.
(Id. at ¶¶ 60-64.)
However, the
individual defendants, including Teel and Dimler, failed to provide
adequate supervision to the decedent.
(Id. at ¶¶ 60-61.)
The
Complaint alleges that the failures of these individual defendants
“were the direct and proximate cause of the self-harm and suicide
by” the decedent.
(Id. at ¶ 55.)
The Complaint also asserts that the Supervisory Defendants
failed to follow their own policy and procedure requiring them to
familiarize themselves with an inmate’s transfer records and failed
to ensure that the decedent was properly treated and supervised for
drug addiction and suicide risk.
(Id. at ¶¶ 64-65.)
The Complaint
also claims that these Supervisory Defendants failed to enact and
enforce procedures and policies that required their staff to review
transfer records or that provided for the treatment of
intoxication, and these failures foreseeably led to the decedent’s
suicide.
(Id. at ¶ 66.)
Plaintiffs initially brought this action on January 14, 2011;
however, the complaint at issue before the Court is the Second
Amended Complaint, which was filed September 21, 2012.
The
Complaint asserts six counts pursuant to 42 U.S.C. § 1983
8
(hereinafter “section 1983”) and the New Jersey Civil Rights Act
(hereinafter “NJCRA”), N.J.S.A. 10:6-1 et seq.:
(1) deprivation of the decedent’s constitutional rights
under the Fourteenth, First, Fourth, Fifth, and Sixth
Amendments of the United States Constitution (id. at ¶¶ 7394);
(2) deprivation of the decedent’s constitutional rights
under the New Jersey Constitution, Article 12, the right to
be free from cruel and unusual punishment, and Article 1,
the right to due process (id. at ¶¶ 95-104);
(3) negligent hiring, training and supervision of employees
and agents (id. at ¶¶ 105-18);
(4) intentional and negligent infliction of emotional
distress (id. at ¶¶ 119-34);
(5) abuse of process by Supervisory Defendants and Kintock
(id. at ¶¶ 135-44); and
(6) medical malpractice by, inter alia, Byrd and Teel (id.
at ¶¶ 145-62).
Plaintiff seeks compensatory and punitive damages, funeral
expenses, interest, attorneys’ fees, and litigation costs.
II.
GOVERNING STANDARD
When considering a motion to dismiss for failure to state a
claim, the court must accept the facts pleaded in the complaint as
true and draw all inferences in favor of the plaintiff.
v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).
Phillips
“[O]nly a
complaint that states a plausible claim for relief survives a
motion to dismiss.”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
“A claim has facial plausibility when the plaintiff pleads factual
9
content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. at 678.
This plausibility standard is not a “probability requirement.”
The
standard merely requires “more than a sheer possibility that the
defendant has acted unlawfully.”
Id.; see also Phillips, 515 F.3d
at 234.
“[T]he tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions.
Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
factual allegations.”
Legal conclusions “must be supported by
Id. at 679.
A civil-rights complaint must “‘contain a modicum of factual
specificity, identifying the particular conduct of defendants that
is alleged to have harmed the plaintiffs.’”
Freedman v. City of
Allentown, 853 F.2d 1111, 1114 (3d Cir. 1988) (quoting Ross v.
Meagan, 638 F.2d 646, 650 (3d Cir. 1981)).3
The court must look
past any conclusory allegations regarding the willfulness of the
defendants’ conduct or the defendants’ reckless disregard of the
3
Plaintiffs assert civil-rights claims under section 1983 and
under the NJCRA, the state counterpart of section 1983 for
violation of rights secured under New Jersey’s Constitution. See
Green v. Corzine, No. 09-1600, 2011 WL 735719, at *7 (D.N.J. Feb.
22, 2011). The “NJCRA is generally interpreted to be coextensive
with its federal counterpart.” Id. Unless otherwise stated, the
analysis and determinations with respect to the section 1983 claims
apply equally to claims under the NJCRA.
10
rights of the victim; the court will focus on “the factual scenario
itself to examine whether the conduct alleged, viewed most
favorably to plaintiffs, is reasonably susceptible to falling
within the conclusions alleged.”
Id. at 1115.
In situations in which more specific allegations may
demonstrate that the conduct at issue falls within section 1983’s
ambit, district courts are required to permit amendment to the
complaint.
Id. at 1114.
“Furthermore, when the lack of factual
specificity is fairly attributable to defendants’ control of
required information, we have permitted the action to proceed to a
reasonable amount of discovery to help [plaintiff] make the
necessary showing to prove her case.”
Id. (internal quotation
marks and citation omitted).
III. ANALYSIS
A.
Official-Capacity Claims4
Balicki, Patterson, Dunlap-Pryce, Dimler, Teel, and Byrd
(hereinafter “Movants”) seek dismissal of the official-capacity
claims (both state and federal) asserted against them based on
state-sovereign immunity under the Eleventh Amendment.
The
Eleventh Amendment states, “The judicial power of the United States
4
Plaintiffs have named several of the individual defendants
in their “personal, individual, and professional capacities.”
Based on the nomenclature in our federal jurisprudence, the Court
construes this to mean that the individuals are sued in their
individual and official capacities.
11
shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by
citizens of another state, or by citizens or subjects of any
foreign state.”
U.S. Const. amend. XI.
With a few exceptions, the
Eleventh Amendment prevents a state entity from being a defendant
in a lawsuit.
This state-sovereign immunity extends to state
officials who are sued for money damages in their official
capacities.
(1985).
See, e.g., Kentucky v. Graham, 473 U.S. 159, 169-70
However, Congress can abrogate state-sovereign immunity
through an unequivocal expression, or a state can waive its own
immunity to suit.
Coll. Sav. Bank v. Fla. Prepaid Postsecondary
Educ. Expense Bd., 527 U.S. 666, 670 (1999).
The parties do not dispute that Movants are state officials,
and thus, when sued in their official capacities, the Eleventh
Amendment issues arise.
In this case, the Complaint seeks monetary
damages as opposed to prospective relief against these state
officials sued in their official capacities.
Congress did not
abrogate state-sovereign immunity in section 1983.
U.S. at 169 n.17.
Graham, 473
And the State of New Jersey has not waived its
sovereign immunity in federal courts.
Thus, none of the exceptions
to the Eleventh Amendment’s bar on monetary relief against state
officials in their official capacity are present in this case.
12
In addition to these immunity issues, there are other
deficiencies with respect to Plaintiffs’ official-capacity claims
pursuant to section 1983, which provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory
or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other
person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity,
or other proper proceeding for redress . . . .
42 U.S.C. § 1983.
But states, and state officials in their
official capacities, are not “persons” for section 1983 purposes.
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64-65 (1989).
Because Movants in their official capacities are immune from
suit and because they are not “persons” under section 1983, the
Court will dismiss the portions of the Complaint seeking relief
against these state officials in their official capacities.
In
fact, having realized their mistake of law, Plaintiffs have stated
that they are willing to stipulate that there is no officialcapacity liability in this matter.
(See dkt. entry no. 147, Pls.’
Opp’n to DOC Defs.’ Mot. to Dismiss at 11-13; dkt. entry no. 148,
Pls.’ Opp’n to Byrd’s Mot. to Dismiss at 9.)
Any references in the
Complaint to official-capacity liability will no longer be viable.
13
B.
Individual-Capacity Claims
The Eleventh Amendment does not bar the individual-capacity
claims, and state officials in their individual capacities are
“persons” for the purposes of a section 1983 suit.
Hafer v. Melo,
502 U.S. 21, 30-31 (1991).
1.
State Common-Law Claims
With respect to the common-law claims against the Movants in
their individual capacities, New Jersey state law pursuant to New
Jersey’s Tort Claims Act (hereinafter the “TCA”) limits the
circumstances in which state officials and state entities can be
held liable for negligence under state law.
3.
N.J.S.A. 59:1-1 to 12-
Because the TCA applies only to state-law claims and “provides
no immunity” from constitutional claims brought under section 1983,
Tice v. Cramer, 627 A.2d 1090, 1105 (N.J. 1993), the Court will
analyze the remaining individual-capacity state common-law claims
separately from the constitutional claims.
Movants have asserted that the alleged conduct at issue is
shielded from liability under state law by the TCA.
Specifically,
Movants argue that, pursuant to N.J.S.A. 59:6-5 and 6-6, public
entities and employees are immune for “failing to diagnose a mental
condition, and for any decision to confine a person for mental
illness.”
(DOC Defs.’ Mot. to Dismiss at 14; see also Byrd’s Mot.
to Dismiss at 8, 11.)
Those sections provide:
14
a.
Neither a public entity nor a public employee is
liable for injury resulting from diagnosing or failing
to diagnose that a person is afflicted with mental
illness or is a drug dependent person or from failing to
prescribe for mental illness or drug dependence;
provided, however, that nothing in this subsection
exonerates a public entity or a public employee who has
undertaken to prescribe for mental illness or drug
dependence from liability for injury proximately caused
by his negligence or by his wrongful act in so
prescribing.
b.
Nothing in subsection a. exonerates a public entity
or a public employee from liability for injury
proximately caused by a negligent or wrongful act
or omission in administering any treatment prescribed
for mental illness or drug dependence.
N.J.S.A. 59-6-5.
Neither a public entity nor a public employee is liable
for any injury resulting from determining in accordance
with any applicable enactment: (1) whether to confine a
person for mental illness or drug dependence; (2) the
terms and conditions of confinement for mental illness
or drug dependence; (3) whether to parole, grant a leave
of absence to, or release a person from confinement for
mental illness or drug dependence.
N.J.S.A. 59:6-6.
Courts interpret these provisions broadly, and close calls in
application are resolved in favor of immunity, not liability.
See,
e.g., Charpentier v. Godsil, 937 F.2d 859, 865 (3d Cir. 1991);
Greenway Dev. Co. v. Bor. of Paramus, 750 A.2d 764, 767 (N.J.
2000); Ludlow v. City of Clifton, 702 A.2d 506, 508 (N.J. App. Div.
1997); Perona v. Twp. of Mullica, 636 A.2d 535, 539 (N.J. App. Div.
1994).
These provisions reflect and advance New Jersey’s public
15
policy in favor of providing immunity to public employees for their
discretionary decision making.
Perona, 636 A.2d at 539, 541.
The New Jersey Appellate Division stated that the immunity
conferred by N.J.S.A. 59:6-6 is not limited only to confinement
within a “mental institution” and that the linchpin for such
immunity “is a discretionary decision whether to confine a person
for the care and treatment of mental illness rather than the
particular type of facility in which a person may be confined.”
Ludlow, 702 A.2d at 508.
Immunity is also not limited to
physicians and can apply to any public employee, including police
officers.
Perona, 636 A.2d at 539.
Additionally, immunity is not
limited to final decisions on whether to confine a person for
mental illness; it applies to all determinations in the commitment
process.
Ludlow, 702 A.2d at 508.
The broad construction of these immunities has led courts to
apply them in a wide range of circumstances.
For example, the
Appellate Division in Perona v. Township of Mullica found that
police officers were immune from suit in circumstances similar to
those presented by this case.
636 A.2d 535.
The police officers
had responded to a domestic violence complaint and learned that Mr.
Perona was attempting to prevent Mrs. Perona from taking a walk by
herself because she had written him what he interpreted to be a
suicide note.
Id. at 537.
Mrs. Perona denied having suicidal
16
intent, indicating that the note merely reflected her wishes if she
were to fail to return home -- if she decided to hitchhike for
example.
Id.
The officers were satisfied with her explanation and
left the Peronas’ home.
Shortly thereafter, Mrs. Perona attempted
suicide by walking in front of traffic on a nearby highway.
Id.
The Appellate Division concluded that the officers’ decision not to
take Mrs. Perona into custody or confinement was immune from
liability under N.J.S.A. 59:6-6.
Id. at 541.
In Predoti v. Bergen Pines County Hospital, the Appellate
Division determined that a hospital was immune under N.J.S.A. 59:66.
463 A.2d 400 (N.J. App. Div. 1983).
The plaintiff, who was
diagnosed as suffering from “schizophrenia chronic undifferentiated
suicidal,” was assigned to the closed ward of the hospital where he
was placed in restraints.
Four days later, he was transferred to a
less-restricted open ward after responding well to treatment.
at 401.
Id.
Two days later, while on an escorted walk for open-ward
patients, the plaintiff detached from the group and was injured by
an automobile when he attempted to cross a highway.
Id. at 402.
The court concluded that the hospital was not liable for the
plaintiff’s injuries under N.J.S.A. 59:6-6 and stated, “Decisions
affecting confinement of the mentally ill are usually highly
predictive and though reasonable can lead to a demonstrably bad
result. . . . By immunizing these difficult decisions the
17
Legislature allows them to be made in an appropriate atmosphere
free from the fear of suit.”
Id. at 402-03.
In McNesby v. State of New Jersey, Department of Human
Services, the Appellate Division again ruled in favor of immunity.
555 A.2d 1186 (N.J. App. Div. 1989).
The plaintiff’s decedent, who
had a history of psychiatric illness and suicidal tendencies, was
involuntarily committed to a psychiatric hospital, and upon his
admittance, the hospital took suicide precautions, which involved
keeping him within the sight of a staff member at all times.
However, after several days, hospital staff determined that these
precautions were no longer necessary, and he was transferred into a
“step-up” ward, where he was allowed intervals of unsupervised
access to the hospital grounds.
Id. at 1187-88.
The plaintiff’s
decedent subsequently set himself on fire, resulting in his death,
and the plaintiff brought suit against the State.
The plaintiff
alleged that, unlike Predoti, she was not claiming negligence based
on the decision to transfer the decedent to a less restrictive
ward, but rather based on the failure to properly supervise the
decedent following the transfer.
Id. at 1189.
On those facts, the
Appellate Division ruled that the State was immune from liability
under N.J.S.A. 59:6-6 because the State did not simply fail to
properly supervise but instead made a deliberate choice to provide
the decedent with unsupervised time, which was an integral part of
18
the treatment plan to prepare him for his release to the community.
Id.
With respect to immunity under N.J.S.A. 59:6-6 in this case,
Movants argue that the gravamen of the Complaint is that the
defendants, who knew or should have known of the decedent’s history
of mental illness, substance abuse, and suicidal tendencies,
cleared the decedent to be released into the general prison
population rather than isolating him or providing him with constant
supervision.
(See, e.g., Byrd’s Mot. to Dismiss at 8, 12.)
Thus,
Movants contend that they are immune from suit because the claims
relate to their alleged failure to properly confine the decedent
based on his mental illness and substance abuse under N.J.S.A.
59:6-6.
Plaintiffs argue that such immunity is inapplicable here and
N.J.S.A. 59:6-6 immunity relates to “whether to commit a person for
mental illness, as well as the terms and conditions of confinement
‘for mental illness or drug dependence.’”
(Pls.’ Opp’n to DOC
Defs.’ Mot. to Dismiss at 23; Pls.’ Opp’n to Byrd’s Mot. to Dismiss
at 11-12.)
Plaintiffs contend that the Complaint alleges that
decedent was incarcerated, not that he was confined for mentalhealth treatment.
(Pls.’ Opp’n to Byrd’s Mot. to Dismiss at 11-12;
Pls.’ Opp’n to DOC Defs.’ Mot. to Dismiss at 23.)
According to
Plaintiffs, the immunity at issue applies only to confinement in
19
facilities that render treatment for mental health.
to Byrd’s Mot. to Dismiss at 12-13.)
(Pls.’ Opp’n
With respect to Byrd,
Plaintiffs further argue that part of their claims rests on her
alleged failure to review the decedent’s transfer records and
follow prison protocol, and these actions are outside of the
purview of the immunity conferred by N.J.S.A. 59:6-6.
(Id. at 13-
14.)
Defendant Byrd responds that, in this case, the confinement
that results in immunity under N.J.S.A. 59:6-6 “is not the
confinement arising from criminal conduct, but rather the choice
not to confine for mental illness.”
(Dkt. entry no. 150, Byrd’s
Reply Br. in Support of Mot. to Dismiss at 6.)5
Byrd analogizes
her decision to release the decedent into the general prison
population to the decision of an emergency room doctor discharging
a patient from a general hospital rather than placing the patient
on suicide watch.
(Id.)
Byrd asserts that the case law
contradicts Plaintiffs’ contention that the confinement for the
purposes of this immunity must be in a mental institution.
6-9.)
(Id. at
Byrd further argues that N.J.S.A. 59:6-6 applies even if
Plaintiffs cast their claims as those for negligent supervision
because “[t]he statutory immunity of N.J.S.A. 59:6-6 applies to all
actions and inactions by the defendant which related to the
5
The DOC Defendants did not reply to the Plaintiffs’
Opposition to their motion to dismiss.
20
determination of whether to confine the decedent for mental
illness.”
(Id. at 10-12.)
The Court agrees with Movants and concludes that they are
immune from liability for Plaintiffs’ state common-law claims based
on N.J.S.A. 59:6-6.
The case law demonstrates wide-ranging
applicability of this type of immunity.
It applies to police
officers confining (or failing to confine) individuals for mentalhealth reasons.
See Perona, 636 A.2d at 541.
It applies even
where the potential confinement would not be in a mental
institution, but rather would be in police custody or in another
ward of a hospital not specific to mental health.
Predoti, 463 A.2d at 402-03.
See id.;
The Court therefore rejects
Plaintiffs’ arguments that the potential confinement under this
provision must be in a mental institution.
The Court is not persuaded by Plaintiffs’ attempts to remove
this case from the realm of the provision’s immunity based on the
fact that the decedent was already confined because he was
incarcerated.
The decision before Movants was whether to further
confine the decedent from the general prison population as a result
of potential mental-health issues.
Movants decided against such
confinement, and therefore, their decision is one considering
“whether to confine a person for mental illness or drug
dependence.”
N.J.S.A. 59:6-6.
21
The Court finds no merit in Plaintiffs’ arguments that these
facts are outside of the provision’s purview because they are
claims for negligent supervision and failure to review transfer
records.
The immunity afforded by N.J.S.A. 59:6-6 applies to all
the decisions and conduct leading up to the decision whether to
confine the individual.
See Ludlow, 702 A.2d at 508.
The
purported failure of Byrd to review the transfer records would be
conduct in the process to the ultimate confinement decision.
And a
claim of negligent supervision implies a duty to supervise, but in
this case, as in McNesby, Movants made a deliberate decision not to
supervise the decedent any more than they would the general prison
population because they did not deem such supervision necessary.
See McNesby, 555 A.2d at 1189.
For these reasons, the Court
concludes that Movants are immune from liability for the state
common-law claims.
Because the Court finds that Movants are immune from liability
in their individual capacities on the state common-law claims based
on the operation of N.J.S.A. 59:6-6, the Court need not address
their potential immunity under N.J.S.A. 59:6-5.6
Moreover, because
Movants are immune from liability on the New Jersey state-law
6
The DOC Defendants also reference potential immunity under
N.J.S.A. 59:6-4 without elaboration. That section relates to the
failure to make, or to adequately make, a physical or mental
examination. Because the Court has resolved this issue on the
applicability of N.J.S.A. 59:6-6, the Court declines to address
potential immunity under N.J.S.A. 59:6-4.
22
claims, the Court declines to consider Byrd’s argument that she is
not a “person” for the purposes of the NJCRA.
Dismiss at 16-17.)
(See Byrd’s Mot. to
And lastly, the Court need not address the DOC
Defendants’ argument that Plaintiffs improperly filed a late Notice
of Claim, in violation of the TCA, N.J.S.A. 59:8-8 and 8-9, which
is a procedural bar to recovery.
(See DOC Defs.’ Mot. to Dismiss
at 14-16.)
2.
Constitutional Claims
The immunities established in the TCA do not provide immunity
for the constitutional claims presented under section 1983.
627 A.2d at 1105.
Tice,
The Court will analyze the individual-capacity
constitutional claims for the adequacy of the pleadings and not for
immunity-type issues.
The Court of Appeals for the Third Circuit has had occasion to
consider under which circumstances liability can be imposed under
section 1983 for prison suicides.
See Colburn v. Upper Darby Twp.,
838 F.2d 663, 667, 669 (3d Cir. 1988) (hereinafter “Colburn I”);
Colburn v. Upper Darby Twp., 946 F.2d 1017, 1023 (3d Cir. 1991)
(hereinafter “Colburn II”).
A plaintiff bringing a section 1983
claim based on a prison suicide “has the burden of establishing
three elements: (1) the detainee had a ‘particular vulnerability to
suicide,’ (2) the custodial officer or officers knew or should have
known of that vulnerability, and (3) those officers ‘acted with
23
reckless indifference’ to the detainee’s particular vulnerability.”
Colburn II, 946 F.2d at 1023.
principles.
This standard balances two competing
First, “a section 1983 claim arising from a prisoner’s
suicide is not per se precluded merely because the injury resulted
from the prisoner’s own self-destructive behavior.”
F.2d at 1115.
Freedman, 853
And second, “a prison custodian is not a guarantor
of a prisoner’s safety.”
Id.
The Court of Appeals for the Third Circuit has declined to
define “reckless indifference” in this standard but stated that it
implies that there was “a strong likelihood,” not just a mere
possibility, of self-harm, and this standard requires that the
custodial officials “‘knew or should have known’ of that strong
likelihood.”
Colburn II, 946 F.2d at 1024.
Relying on the
jurisprudence of sister circuits, the Court of Appeals for the
Third Circuit stated, “Custodians have been found to ‘know’ of a
particular vulnerability to suicide when they have had actual
knowledge of an obviously serious suicide threat, a history of
suicide attempts, or a psychiatric diagnosis identifying suicidal
propensities.”
Id. at 1025 n.1.
With respect to the phrase
“should have known,” the court explained that its meaning is
distinct from its usual meaning for tort-law purposes:
[The phrase] does not refer to a failure to note a risk
that would be perceived with the use of ordinary
prudence. It connotes something more than a negligent
failure to appreciate the risk of suicide presented by
24
the particular detainee, though something less than a
subjective appreciation of that risk. The “strong
likelihood” of suicide must be “so obvious that a lay
person would easily recognize the necessity for”
preventative action; the risk of self-inflicted injury
must not only be great, but also sufficiently apparent
that a lay custodian’s failure to appreciate it
evidences an absence of any concern for the welfare of
his or her charges.
Id. at 1025 (internal citation omitted).
The Court of Appeals for the Third Circuit in Colburn I and
Colburn II had the opportunity to analyze the standard for a
section 1983 claim based on a prison suicide both at the motion-todismiss stage and the summary-judgment stage.
In that case,
Melinda Lee Stierheim, who was visibly intoxicated, was taken into
custody by the Upper Darby police.
Colburn I, 838 F.2d at 664.
Diane Miller, a custodial official with the Upper Darby police
department, searched her, but did not find a handgun.
Id. at 665.
About four hours later, Stierheim shot herself in her cell with a
handgun.
Id.
Stierheim’s mother, Sue Ann Colburn, as the
administratrix of Stierheim’s estate sued the town, the police
department, Miller, and several other individuals under section
1983 for deprivation of Stierheim’s constitutional rights.
Id.
The court, in the decision on the motion to dismiss, detailed
the allegations of the complaint to determine whether they were
insufficient as a matter of law to assert section 1983 claims based
on a prison suicide against custodial officials in their individual
25
capacities.
Id. at 670.7
These facts included that: (1) the
police were familiar with Stierheim from previous encounters as a
result of her relationship with gang members; (2) the day before
her suicide, the police had been called to her apartment after she
had jumped out of a window during a fight with her boyfriend; (3)
Stierheim was depressed; (4) she had obvious scars on her wrist
from a prior suicide attempt; (5) an officer had to prevent her
from swallowing three Valium pills that she had in her purse; (6)
she was detained “for her own protection” by police; and (7) Miller
discovered a round of ammunition in Stierheim’s pocket.
Id.
On
the basis of these facts, the court ruled that it could not
conclude that these allegations were insufficient as a matter of
law to state a section 1983 individual-capacity claim against
Miller, the custodial official who had searched Stierheim and had
failed to discover the handgun in her possession.
Id.
Following the remand in Colburn I and further development of
the record during discovery, the court granted summary judgment in
favor of the defendant.
Colburn II, 946 F.2d at 1027.
Further
discovery revealed that the incident where Stierheim jumped out a
window the day before her suicide did not appear to be a suicide
7
The court was relying not only on the complaint but also on
the plaintiff’s memorandum in opposition to the motion to dismiss,
which detailed specific facts that could be asserted in an amended
complaint depending on the court’s ruling on the motion to dismiss.
Colburn I, 838 F.2d at 670.
26
attempt but rather an effort to escape from her boyfriend.
1026.
Id. at
She accepted help from police officers in getting down when
they arrived.
Id.
With respect to the other allegations regarding what Miller
knew on the night in question, the court explained that while a
trier of fact may infer that scars on Stierheim’s arms were the
result of a suicide attempt, the record demonstrated that no one
noticed these scars on the evening of her suicide.
Id.
Nothing in
the record developed through discovery indicated “that Stierheim
had ever been diagnosed as suffering from a mental illness
characterized by a high risk of self-inflicted harm” or that there
was any other indication that Stierheim was vulnerable to suicide.
Id.
While the plaintiff had relied on Stierheim’s intoxication as
an indicator of vulnerability to suicide, the court noted its
agreement with the majority of other circuits, “which have refused
to recognize intoxication as a factor sufficient to trigger the
duty to guard against self-inflicted injury.”
Id.
The court
further reasoned that Stierheim’s possession of a bullet -- that
was discovered by Miller during the search -- without more, was not
an indicator of suicidal tendencies.
Id. at 1027.
Finally, the
court concluded that, while consumption of a large quantity of
drugs could manifest suicidal intent, the three pills that Miller
27
believed that Stierheim had tried to swallow were insufficient to
“make it apparent that a detainee is on the verge of suicide.”
Id.
The court was convinced, following the development of the
record through discovery, “that no fair-minded jury could conclude
. . . that Stierheim had a particular vulnerability to suicide of
which Miller should have been aware.”
Id.
Thus, the court
affirmed the district court’s grant of summary judgment in favor of
Miller.
Id.
Following Colburn I and Colburn II, the Court of Appeals for
the Third Circuit has had several opportunities to apply the
standard for section 1983 claims based on prison suicides.
In
Freedman v. City of Allentown, the court found that the plaintiffs’
allegations that the decedent prisoner had prominent scars on his
wrists, when viewed in the light most favorable to the plaintiffs,
amounted merely to negligence and did not state a viable section
1983 claim.
853 F.2d at 1116.
While there were allegations that
the decedent prisoner had suicidal tendencies and had previously
attempted suicide, the allegations did not suggest that this was
known to the individual police officers but rather that the
probation officer knew about the decedent’s suicidal past and
failed to mention it to the officers.
Id. at 1115.
For these
reasons, the court affirmed the dismissal of the complaint against
the police officers.
See id. at 1116.
28
Similarly, in Kulp v. Veruete, following discovery, the court
affirmed the district court’s grant of summary judgment where the
defendants had recognized that the decedent had some emotional
issues and potentially “passive suicidal thoughts,” but two
counselors, after extended evaluations, did not think it was
necessary to place the decedent on suicide watch.
267 Fed.Appx.
141, 144 (3d Cir. 2008).
Where the allegations in the complaint demonstrate concrete,
direct knowledge on the part of the defendant officials of the
decedent’s suicidal tendencies and an inexplicable disregard of the
warning signs, a motion to dismiss should be denied.
For example,
in Tatsch-Corbin v. Feathers, the complaint averred that the
decedent was released into the general prison population as opposed
to being placed on suicide watch even though: the defendant
officials had specific, direct knowledge of the decedent’s history
of mental-health issues and suicide attempts; the decedent
indicated he was considering killing himself to an intake officer;
and the decedent made additional suicide threats to prison
officials as he was escorted to and from a hearing the day before
his suicide.
561 F.Supp.2d 538, 540-542 (W.D. Pa. 2008).
The
United States District Court for the Western District of
Pennsylvania concluded on these facts that a jury could find that
29
officials acted with deliberate indifference to the decedent’s
condition and, thus, denied the motion to dismiss.
Id. at 544.
Plaintiffs in this case argue that the standard for section
1983 liability in prison suicide cases is established by the facts.
Plaintiffs assert that Defendants’ “failure to follow protocol
despite specific knowledge that it could lead to self-inflicted
harm, including the failure to properly monitor and supervise the
inmate in his cell and/or allow bedsheets in the cell among other
failures can amount to deliberate indifference sufficient to impose
individual liability.”
(Pls.’ Opp’n to DOC Defs.’ Mot. to Dismiss
at 19.)
The Court will consider this standard with respect to the
allegations against the defendants individually.
According to the
Complaint, Dimler was responsible for supervising the decedent once
he had been released into the general prison population through the
time of his suicide.
(Compl. at ¶ 26.)
Teel was the medical
provider responsible for the decedent’s care and supervision from
the time he was placed in the general prison population until his
death.
(Id. at ¶ 32.)
Dimler and Teel “knew or should have known
of the history of suicide and psychiatric illness suffered by” the
decedent and that the decedent was an addict at a high risk for
suicide.
(Id. at ¶¶ 27, 33, 62.)
According to the Complaint, both
disregarded the decedent’s risk of suicide and violated policy and
30
procedure, by failing to adequately monitor the decedent, allowing
him to be in his cell with materials that could harm him, and
failing to intervene to prevent the suicide.
35, 60, 61.)
(Id. at ¶¶ 28-29, 34-
The Complaint also asserts that Dimler and Teel
failed to review the transfer records from Kintock in order to
determine what level of supervision was required.
62.)
(Id. at ¶ 36,
Dimler and Teel also purportedly failed to evaluate the
decedent for intoxication as was required by prison policy and
procedure.
(Id. at ¶ 53.)
The Court finds that the conclusory allegations with respect
to Dimler and Teel are insufficient as a matter of law and fail to
demonstrate -- even when viewed with all inferences in Plaintiffs’
favor -- that they would have had any reason to be concerned about
the decedent’s risk of suicide.
See Freedman, 853 F.2d at 1114
(stating that court must look past conclusory allegations).
With
respect to the allegations that Dimler and Teel failed to review
the transfer records or evaluate the decedent for intoxication, the
Court finds that these conclusory allegations, even if taken as
true, would merely establish negligence and would fall short of the
reckless indifference required by Colburn II.
946 F.2d at 1023.
Plaintiffs have not pled -- beyond conclusory statements that
merely restate the legal standard -- actual knowledge on the part
of Dimler or Teel.
Id. at 1025 n.1.
31
Nor have Plaintiffs pled that
they “should have known” of the decedent’s vulnerability to
suicide, as the Complaint fails to point to any actions of the
decedent that would have alerted Dimler or Teel to the fact that he
was a suicide risk.
Plaintiffs have not alleged how Teel and
Dimler, in the course of their duties, would have been aware of the
decedent’s particular vulnerability.
This “should have known”
standard requires “something more than a negligent failure to
appreciate the risk of suicide,” and the Complaint, viewed in the
light most favorable to Plaintiffs, does not provide allegations
capable of satisfying this standard.
Id. at 1025.
Therefore, the
Complaint will be dismissed in its entirety as to Dimler and Teel.
In contrast, the Court finds that the Complaint, when viewed
in the light most favorable to Plaintiffs with all inferences drawn
in their favor, states a claim against Byrd in her individual
capacity under section 1983 for a prison suicide.
The Complaint
alleges that Byrd performed a nursing intake on January 16, 2009
and noted that the decedent had answered in the affirmative to
questions regarding whether he had a history of suicidal tendencies
and whether he had been hospitalized or treated for psychiatric
illness.
(Compl. at ¶ 50.)
Despite this, Byrd purportedly cleared
the decedent to be placed into the general prison population.
at ¶ 59.)
The Court finds that these specific allegations of
Byrd’s basis for knowledge of the decedent’s vulnerability to
32
(Id.
suicide are sufficient to overcome a motion to dismiss.
Colburn II
-- in reliance of the jurisprudence of other circuits -specifically states that actual knowledge may be based on a history
of suicidal tendencies.
946 F.2d at 1025 n.1.
Plaintiffs have
adequately pled a section 1983 individual-capacity claim against
Byrd following a prison suicide based on her actual knowledge of
the decedent’s particular vulnerability.
Plaintiffs request that, if the Court deems any of the claims
insufficient (for example the individual-capacity claims against
Dimler and Teel), the Court permit additional discovery to assist
in the development of the claims in the Complaint.
(Pls.’ Opp’n to
Byrd’s Mot. to Dismiss at 15-16; Pls.’ Opp’n to DOC Defs.’ Mot. to
Dismiss at 24.)
The Court concludes that the lack of specificity
is not “fairly attributable to the defendants’ control of required
information.”
See Freedman, 853 F.2d at 1114.
The Court finds
that these allegations seek to impose liability against these
defendants on a negligence standard, which is not permitted for
prison suicide cases.
Therefore, the Court declines to permit
discovery to allow development of the claims against Dimler and
Teel.
C.
Supervisory Liability
With regard to the liability of the Supervisory Defendants,
Plaintiffs refer to federal jurisprudence on section 1983 municipal
33
liability under Monell v. Department of Social Services of the City
of New York, 436 U.S. 658 (1978).
Mot. to Dismiss at 14-16.)
(See Pls.’ Opp’n to DOC Defs.’
In contrast to state government
defendants, the Eleventh Amendment does not bar damage awards
against municipalities and municipal officials in their official
capacity.
Monell, 436 U.S. at 690 n.54, 55.
Likewise, municipal
officers named in their official capacities are “persons” for
section 1983 purposes.
Id. at 690 n.55.
The one municipal defendant here -- Mercer County -- was
dismissed from the action by stipulation of the parties on March
22, 2011.
(See Stip. of Dismissal as to Mercer County.)
Plaintiffs and Movants consistently treat all the individual
defendants as state officials, not municipal officials.
As
discussed, these officials enjoy immunity under the Eleventh
Amendment when sued in their official capacity.
Thus, Plaintiffs’
citations to municipal liability under Monell and its progeny are
irrelevant.
(See Pls.’ Opp’n to DOC Defs.’ Mot. to Dismiss at 14-
16.)
Notwithstanding Monell’s inapplicability, supervisory
liability under section 1983 is possible.
However, such liability
must be premised on the supervisory defendant’s personal
involvement in the wrongs; “it cannot be predicated solely on the
operation of respondeat superior.”
34
Rode v. Dellarciprete, 845 F.2d
1195, 1207 (3d Cir. 1988); see also Polk Cnty. v. Dodson, 454 U.S.
312, 325 (1991).
There are two theories under which supervisory liability may
be premised for section 1983 purposes.
A.M. v. Luzerne Cnty. Juv.
Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004).
First, “[i]ndividual
defendants who are policymakers may be liable under § 1983 if it is
shown that such defendants, with deliberate indifference to the
consequences, established and maintained a policy, practice or
custom which directly caused [the] constitutional harm.”
(internal quotations and citation omitted).
Id.
Second, “a supervisor
may be personally liable under § 1983 if he or she participated in
violating the plaintiff’s rights, directed others to violate them,
or, as the person in charge, had knowledge of and acquiesced in his
subordinates’ violations.”
Id.; see also Rode, 845 F.2d at 1207.
This second theory essentially requires that the acts or omissions
of the supervisor were the “moving force” behind the harm.
Sample
v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989); Jackson v. Taylor,
No. 05-823, 2006 WL 2347429, at *2 (D. Del. May 12, 2006).
“Allegations of participation or actual knowledge and acquiescence,
however, must be made with appropriate particularity.”
Rode, 845
F.2d at 1207.
The DOC Defendants argue that, based on the foregoing, the
Complaint is deficient with respect to the Supervisory Defendants –
35
- Balicki, Patterson, and Dunlap-Pryce.
Specifically, the DOC
Defendants argue that the Complaint lacks specific facts regarding:
(1) the conduct of the Supervisory Defendants; and (2) which policy
or procedure they failed to follow or implement.
to Dismiss at 12-14.)
(DOC Defs.’ Mot.
Plaintiffs counter that the alleged facts
demonstrate “both the direct knowledge and participation of the
Supervisory Defendants in obtaining and reviewing transfer records
of inmates in their facilities” and that the Supervisory Defendants
failed “to enact, implement and enforce policies and procedures”
for: (1) the review of transfer records; and (2) the treatment of
individuals with addiction/intoxication issues or who pose a risk
of self-harm/suicide.
at 18.)
(Pls.’ Opp’n to DOC Defs.’ Mot. to Dismiss
Plaintiffs claim that this “foreseeably led to the suicide
of Mullin and which evidenced a gross indifference and reckless
disregard for the rights of” the decedent.
(Id.)
Plaintiffs argue
that it is unreasonable to expect them to be able to identify the
exact policy at issue, as, without discovery, Plaintiffs do not
have access to internal department policies and procedures.
(Id.
at 19.)
The Court of Appeals for the Third Circuit has addressed
claims against supervisory defendants in the prison suicide context
under similar facts.
In Colburn I, despite allowing the claims to
proceed over a motion to dismiss against the custodial official who
36
was personally involved in alleged wrongdoing, the court dismissed
the claims against the supervisory defendants -- the police
commissioner of Upper Darby Township and the mayor of Upper Darby - in their individual capacities because the complaint lacked
allegations that these supervisory defendants were personally
involved in any of the activities related to the decedent’s
suicide.
Colburn I, 838 F.2d at 673.
The Court finds the Complaint in this case to be similarly
deficient with respect to the Supervisory Defendants.
The
Complaint identifies Balicki, Patterson, and Dunlap-Pryce as
“supervisory official[s].”
(Compl. at ¶¶ 2-4.)
The Complaint
alleges that the decedent was in the custodial care of the
Supervisory Defendants and that agents of the Supervisory
Defendants examined the decedent.
(Id. at ¶¶ 37, 39.)
The
Complaint alleges that the Supervisory Defendants “knew or should
have known based on daily intake records at their disposal that”
the decedent was being transferred to their care and that he had a
history of suicide attempts, psychiatric problems, and drug abuse.
(Id. at ¶ 63.)
Under policy and procedure, Plaintiffs aver that
the Supervisory Defendants were required to know the status of
inmates brought into their facilities and to review the transfer
records.
(Id. at ¶ 64.)
Plaintiffs allege that the Supervisory
Defendants failed to review these records and to ensure that the
37
decedent was properly treated as a suicide risk.
(Id. at ¶ 65.)
Finally, Plaintiffs assert that the Supervisory Defendants failed
to enact and enforce policies and procedures requiring the review
of transfer records and the proper treatment of those who had
addiction problems or who were a suicide risk.
(Id. at ¶ 66.)
The Court finds that, as in Colburn I, these allegations are
insufficient to survive a motion to dismiss.
The Complaint lacks
any allegations that these Supervisory Defendants were personally
involved in the actions at issue.
See Colburn I, 838 F.2d at 673.
Plaintiffs do not allege that these Supervisory Defendants
participated, directed, or acquiesced in the violation of the
decedent’s rights.
See A.M., 372 F.3d at 586.
While Plaintiffs also seek to hold the Supervisory Defendants
liable under the policy or practice theory of supervisory
liability, see id., the Court finds that the Complaint is far too
conclusory with respect to any deficiencies in any policy or
practice.
And while Plaintiffs have argued that it is unreasonable
to expect them to identify the policy or procedure without
discovery, the Court will not allow a fishing expedition into the
operations of the state department of corrections absent any
indication by Plaintiffs that such discovery will be fruitful.
For
these reasons, the Court will dismiss the claims asserted against
the Supervisory Defendants in their entirety.
38
D.
Punitive Damages
Plaintiffs have requested punitive damages against the
individual defendants.
Punitive damages are available for section
1983 claims when the conduct of the defendant “involves reckless or
callous indifference to the federally protected rights of others.”
Smith v. Wade, 461 U.S. 30, 56 (1983).
This is true even when the
underlying liability standard for compensatory damages is that of
recklessness.
Id.
Where the facts allege reckless conduct, and
the allegations of the complaint with respect to that conduct are
found to be sufficient to withstand a motion to dismiss, a court
may decline to dismiss punitive-damage claims at the motion-todismiss stage.
See, e.g., Tatsch-Corbin, 561 F.Supp.2d at 545.
The claims asserted against the majority of the defendants
will be dismissed, thereby resulting in the dismissal of the
punitive-damage claims against these defendants as well.
However,
with respect to Byrd, the Court has found that the Complaint
adequately pleads a claim for relief.
Therefore, the Court
declines to dismiss Plaintiffs’ request for punitive damages
asserted against Byrd at his juncture.
IV.
CONCLUSION
The Court for the reasons stated above, will (1) grant the
motion to dismiss by Balicki, Patterson, Dunlap-Pryce, Dimler and
Teel, (2) deny the motion for judgment on the pleadings by Byrd
39
insofar as it concerns individual-capacity, constitutional claims
asserted against her, and (3) otherwise grant Byrd’s motion.
Remaining before the Court in this matter are Plaintiffs’ claims
against Kintock (which did not move to dismiss any claims) and the
constitutional claims against Byrd in her individual capacity.
The
Court will issue an appropriate Order.
s/ Mary L. Cooper
.
MARY L. COOPER
United States District Judge
Date:
November 1, 2013
40
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